Whose Sign Is It Anyway?

In Heffernan v. City of Paterson, it’s not so clear if the First Amendment is relevant.

We’re posting transcripts of Amicus, our legal affairs podcast, exclusively for Slate Plus members. What follows is the transcript for Episode 35, in which Slate’s Dahlia Lithwick discusses Heffernan v. City of Paterson, in which a state employee claimed his demotion for carrying a campaign sign violated his First Amendment rights. At first, the case seemed straightforward, but the lawsuit got sticky when the plaintiff revealed that the sign he was toting actually didn’t tout his endorsement. In fact, he couldn’t care less who got elected—and was only delivering the sign to his mother! Does the First Amendment still have him covered?

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

Tune in to hear both sides of the case from UCLA legal historian, Stuart Banner, who filed the case on behalf of the plaintiff, and Tom Goldstein, who argued the case on behalf of the city of Paterson.

We’re a little delayed in posting this episode’s transcript—apologies. This is a lightly edited transcript and may differ slightly from the edited podcast.

Dahlia Lithwick: Hi, and welcome to Amicus, Slate’s Supreme Court podcast. I am Dahlia Lithwick, and I cover the high court for Slate magazine.

So, we’re coming at you a few days late this week, and for that we blame the snow. Here in Virginia now we’re mostly dug out, dusted off, and ready to act like serious thinkers rather than just mindless consumers of marshmallows and hot liquid chocolate.

Now, this week we decided to focus on a deeply strange—the word bizarre was invoked more than once at oral arguments last Tuesday—case involving speech and public employees. It’s almost creeping up on an Encyclopedia Brown mystery, the case of the missing constitutional violation.

So, the case is called Heffernan v. City of Paterson, and it involves a 20-year veteran police officer of the Paterson, New Jersey Police Department who was demoted in 2006 for ostensibly supporting the wrong mayoral candidate, except he never supported that candidate or any candidate in the first place.

It turns out he was just picking up a yard sign for the wrong candidate for his bed-ridden mother. Mistaken identity. Comedy ensues. Confusion. The First Amendment question at the heart of Heffernan v. Paterson is this: When you are a public employee, do you have a right not to be retaliated against when the city falsely ascribes a political viewpoint to you that you never even had?

I know, right? Joining us today to discuss the case are two of the lawyers involved. The first will be Stuart Banner, a legal historian and a Norman Abrams Professor of Law at the UCLA Law School. Banner also directs UCLA Supreme Court Clinic, and he filed this case on behalf of Jeffrey Heffernan, the police officer who was demoted for his First Amendment speech and values.

So, welcome to Amicus, Stuart Banner.

Stuart Banner: Well, thanks very much.

Lithwick: So, I want you to help us set the table because from where I sit, this looks like a pretty classic First Amendment story, right? Boy meets public employer, boy gets demoted by his public employer for his political viewpoints.

Can you help us understand why Jeffrey Heffernan is before the Supreme Court with a First Amendment claim?

Banner: Yeah, well, the odd wrinkle in this case is that although his boss, the police chief and the mayor, they demoted him because they thought that he was campaigning for the mayor’s opponent in the upcoming election.

In fact, he wasn’t campaigning for the mayor’s opponent. He was—he was picking up a campaign sign. So, he was seen holding a campaign sign, but he was actually getting it for his mother.

Lithwick: Right. And, so, his mother had a sign on her lawn, she was involved in the campaign.

Banner: Well, she was a supporter.

Lithwick: And she said, my lawn sign was stolen. Go fetch me another one, and he was seen by colleagues in the police department seemingly supporting the wrong candidate; right?

Banner: Right, exactly, exactly.

Lithwick: So, help us understand why this just isn’t a pure First Amendment case; why is the court struggling with this and why did the lower court say there’s just no First Amendment claim here at all?

Banner: So, the lower courts—the view of the lower courts was that because Heffernan was not campaigning for Spagnola, he wasn’t exercising any First Amendment right.

And, so, when he was demoted, that was not retaliation for the exercise of a First Amendment right because, according to the lower courts, Heffernan was not exercising any First Amendment right. He wasn’t speaking out for Spagnola, he wasn’t associating with the Spagnola campaign.

And, so, they said, well, if you’re not actually out there doing something and exercising a First Amendment right, then it’s not a First Amendment violation to retaliate against you for that. Now, of course, we think that’s wrong, and that was our argument in the served petition and in the briefs in the case which is that you don’t have to go out and do anything in order to be protected by the First Amendment.

All public employees are protected by the First Amendment against these sorts of patronage demotions whether or not they’re actually out there campaigning.

Lithwick: And can you just help clarify because this becomes complicated in thinking about this case.

It seems to live somewhere in the interstices between speech and association; right? I mean, there’s a speech component, he was picking up a sign, but this is really, I think, an association claim about getting to hold certain political viewpoints or mistakenly have those viewpoints attributed to you.

So, can you help us just parse whether this is a speech case, or an association case, or both, or neither, or something in the middle?

Banner: Yeah, you know, I think it - it depends on how you look at it. Just looking at it as an ordinary person, as a reasonable person would look at it, of course it’s got elements of speech and association because Heffernan was demoted because his boss thought that he was engaging in classic political speech—you know, holding a Spagnola campaign sign—and because his boss thought he was associating with the Spagnola campaign.

So, just looking at it that way, it’s got elements of speech and elements of association. As presented to the Supreme Court, though, it’s an association case. The court took it to decide the question of whether it’s a First Amendment violation to demote a person based on the employer’s perception of that person’s association.

Lithwick: So, you present this as a wrinkle in the case. I think for some of the Justices it’s more than a wrinkle, it’s dispositive that Officer Heffernan was neither speaking nor associating . Let’s listen to Chief Justice Roberts’ characterization of what went on in the case.

Justice Roberts: The First Amendment talks about abridging freedom of speech, and I thought the case came to us on the proposition that he wasn’t engaging in speech at all; that he was not engaging in association, he was not engaging in trying to convey a message.

He was just picking up a sign for his mother. And if that’s the basis on which the case comes to us, I’m not sure how he can say his freedom of speech has been abridged.

Lithwick: So, Stuart, can you help us understand why for what looked like at least three, maybe four Justices, there’s simply no case here because it’s simple: He wasn’t doing anything.

Banner: Right. Well, that’s the—was the view taken by the lower courts as well; right? That’s the view that we think is a mistake. I mean, the facts are kind of unusual in this case, but it really does present a really fundamental question, and that is: Does a person have to actually go out and speak or go out and campaign in order to be protected by the First Amendment?

Or as Justice Kagan, I think, well put in the argument, does the First Amendment also protect couch potatoes? Does it protect people who don’t go out and speak and don’t go out and participate in campaigns? And, of course, we think that that view is correct.

Lithwick: And Kagan really unspools this horrible set of hypotheticals in which public employers are systematically firing all their couch potatoes simply for being couch potatoes; is that her being rhetorical or is that really the fear of this case?

Banner: I think that’s right. I mean, I don’t think she’s being rhetorical because if, in fact, you actually have to go out and campaign in order to be protected by the First Amendment, that would mean that a newly elected mayor would be able to fire every municipal employee—you know, all the couch potatoes—and replace them with people loyal to the mayor, and that’s exactly what the First Amendment is supposed to protect against.

Lithwick: So, can you just do the thing that several of the Justices—I think probably most notably Justice Anthony Kennedy said they needed to hear an argument, which is—can you just crisply distill what is the First Amendment right here, assuming that Officer Heffernan neither spoke nor associated?

Banner: Yeah, it’s a—it’s a right not to be demoted on patronage grounds.

Lithwick: Fair enough. I think that one of the problems that Mark Frost, who was arguing this case, got into fairly quickly with some of the Justices was that they felt, oh, there’s plenty of recourse under his collective—bargaining, under New Jersey State Statutes. There’s other ways that this right could have been vindicated rather than going to the Supreme Court with a First Amendment claim; what’s your answer to that question?

Banner: Well, there’s really two answers to that question; right? One is that it shouldn’t matter.

Whether or not there are state law remedies available to someone like Heffernan, that can’t be what determines the content of the First Amendment. Obviously, a state can’t pass statutes to weaken First Amendment rights, so that’s the first answer is it shouldn’t matter.

Second answer is that it’s not at all clear that Heffernan actually did have remedies available under state law. The main state statute that the respondents cite is basically the equivalent of Section 1983 in the Federal Statutes; that is, it’s a statute that just forbids a state from violating someone’s constitutional rights.

So, the issue here would be the same under state statute as it is currently under the federal statute. And, you know, the notion that unionized employees can protect themselves through collective bargaining and get grievance procedures and so on, that can’t affect the level of First Amendment protection.

I mean, it wouldn’t make any sense for unionized employees to have lesser First Amendment rights than non-unionized employees, and certainly that, you know, there’s no cases that say that.

Lithwick: And it did feel as though one of the strong arguments on your side of the case was this idea that it’s not the actual demotion, it’s the chilling effect; right?

Banner: Right.

Lithwick: The sense that it doesn’t matter what my employer, in fact, does. I’m just going to stop doing anything that is up to the line of what might be demotable events.

Banner: Well, right. If you can get demoted just because the boss has the wrong impression about your politics you’re not going to engage in any politics at all.

If you hear that your buddy in the police department got demoted because the boss mistakenly thought that he was involved in a political campaign, you’re not going to get anywhere near a political campaign because you don’t want that to happen to yourself.

Lithwick: I wonder if you would comment a little bit, Stuart, on the proposition that, you know, the cliché is that these hard cases, these outlier cases, make bad law, and that the Justices—toward the end of the day you kept hearing the word bizarre over and over again—that this just somehow was this freaky outlier, one-off case that is about to move the goal posts in a deep way.

Is it your sense that this is a freaky, outlier, one-off case, it’s never going to happen again or is this really something that we want to be kind of cognizant of and aware of; that this really does matter, this isn’t a one-off case that could set some bad precedent, but that this could be a big deal?

Banner: Well, it’s probably not all that common that public employees are fired or demoted based on a misimpression about their political beliefs, but it’s not a one-off case. I mean, there was a circuit split on this issue. There were three circuits that had taken the view that we take; that this sort of thing is protected by the First Amendment.

So, it’s come up at least a few times in recent years. And even if the facts are relatively unusual, I think the basic question is not at all an unusual question. It comes up all the time, and that is: Do you actually have to go out and do anything in order to be protected by the First Amendment or does it protect people who don’t speak and don’t participate in political campaigns?

Lithwick: Stuart Banner is a legal historian and the Norman Abrams Professor of Law at UCLA School of Law. He also directs UCLA Supreme Court Clinic. He filed this case on behalf of Jeffrey Heffernan, the police officer demoted for his speech. Thank you so much for joining us this week, Stuart.

Banner: Oh, thanks for having me.

Lithwick: So, joining us now is Tom Goldstein. He is a repeat offender on this show, founding editor of SCOTUSblog, a frequent oral advocate at the Supreme Court, and represented the City of Paterson, New Jersey, in this case.

So, Tom, welcome back to Amicus.

Tom Goldstein: Oh, thank you so much for having me.

Lithwick: And I want you to start by teeing up the case the way you would tee up the case because I think an awful lot of people, including the other side of the case, say this is a case where a cop got fired for his political views.

Can you help us understand why this isn’t the easiest case in the world for the other side?

Goldstein: Sure. Well, it turns out that at least when it comes to the Constitution, Detective Heffernan could be reassigned for basically any reason.

He’s what we call an at will employee. And, so, we have the sense when we start, like, you should only treat employees in a certain way. And that might be true under his collective bargaining agreement or state law, but the constitution is super limited, and it says, look, you have the right to speak and associate.

And the very unusual thing about this case is that he has been found by the lower courts to have just been running an errand. He wasn’t speaking or associating about the mayoral race in 2006 for the Town of Paterson any more than you or I were.

And, so, the question is, look, if you’re running an errand but the government thinks that you are actually doing something that’s constitutionally protected, does it violate the Constitution if it does something to you?

And the reason that the case is more complicated, the reason that we won below is it turns out that in every other context, at least—and we’ll see about this one— the Supreme Court has said, look, if you want to stake a Constitutional claim, if you want to make a federal case out of it, the first thing you have to say is, I was engaging in my Constitutional rights.

And if he wasn’t speaking because the sign wasn’t his, he wasn’t endorsing the mayor’s opponent, if he wasn’t associating because he wasn’t involved in the campaign, you know what? The Constitution doesn’t protect family errands.

Lithwick: And can you help us understand, you sort of touched on it, but I wonder if you would unpack this, Tommy, there are speech claims and association claims in this case.

And even though it kind of comes up as a speech case, I think a lot of people would agree certainly there’s no speaking involved other than carrying around a sign, but I think the association claims do seem to run deeper or to chime with what people think must somehow be protected under the First Amendment; can you help us unpack the speech versus association claims in this case?

Goldstein: Sure. So, imagine that the sign that he picked up wasn’t one for the mayor’s opponent, but rather was pro union or pro raising the minimum wage or something like that.

If he actually intended to convey that message, he would be engaging in speech. And there are times the government can do something to its employees when they engage in speech and there are other times when they can’t, but that part of the case is now gone. He’s not pursuing the idea that by holding up the sign he was speaking, and that is to say speaking about the mayoral campaign.

But you’re right. The reason the case touches a nerve is that we have a sense that the government shouldn’t be doing things, including particularly making employment decisions, based on political reasons. We’re past the era of political patronage kind of on a Gestalt intuitive level just to many people seems wrong.

And, so, his associational claim was originally in the case, look, you know, the mayoral opponent here actually is a friend of mine, and I would love to see him win, and by holding the sign in my hands, I was, you know, associating with the campaign.

But both of the lower courts said, yeah, I’m afraid not. You specifically said you weren’t involved in the campaign, and this was just to run an errand. But it is perfectly clear, I think, that he would be able to get out of the blocks in his Constitutional claim if he had picked up that sign because, you know, he supports the mayoral opponent.

There would be other issues in this case, but that would state the beginnings of a right of association claim—his right to associate with the mayoral opponent in the race.

Lithwick: And Tom, I think the other thing that was nuanced in the argument that it would be so helpful if you could unpeel a little bit for us is the distinction you were making between a government employee who is politically neutral and a government employee who is politically checked out.

Goldstein: Sure.

Lithwick: The word Elena Kagan kept using was couch potato. Couch potato: someone who just, you know, this is not someone who’s neutral; this is somebody who just doesn’t care.

Goldstein: Right.

Lithwick: Can you help us understand why that matters because that felt like it took up a lot of energy at oral argument.

Goldstein: Yeah. So, this is the thing: The Supreme Court has said, look, take your ordinary political race in which there’re two parties here. If you’re for the Republicans, you’re protected. That’s your association. If you’re for the Democrats, you’re protected. And if you decide to be Independent, you’re protected, too. All of those are decisions about who you want to associate with politically—one side or the other or neither.

But what if you just don’t care about the race in question. You know, think about me. You know, I have no idea who in 2006 was, you know, what the platforms were for the candidates for mayor in the Town of Paterson, and you probably didn’t either.

Lithwick: I did not.

Goldstein: And—you see? As well-informed as Slate senior staff are, I think we could fairly say neither one of us had an associational interest in the race. If I had not been hired to be the town’s lawyer because of the town thinking that I supported somebody in the race—I actually didn’t, I have no clue—and, so, the difference here is if you are completely uninvolved in politics, you’re not protected. But if the government—say you supported the Democrat and the government thought that you supported the Republican, you would still be protected.

The fact that it screwed up about precisely how you were exercising your Constitutional rights wouldn’t save the government.

Lithwick: And, so, this leads to a colloquy back and forth between you and Justice Elena Kagan where she says, you know, this would just be such a strange view of the First Amendment that the town could just pick off all the couch potatoes.

Let’s listen for a minute.

Justice Kagan: If you were saying—and I think you said this straight out—you’re saying, I can come into an office, I’m a Democrat, I identify every person without the well-known political view—every couch potato out there—just fire one after another after another after another, replace them all with Democrats, change the entire character of the office, do it for a reason that I prefer one political view to any other, and that that will not be a violation of the First Amendment.

Lithwick: Tom, do you want to respond to her claim that this is just a completely upside down-ish view of what the First Amendment is supposed to be doing?

Goldstein: Sure. And I think that it’s actually pretty well-established in the law that the First Amendment doesn’t do as much as some people would hope, and that is there are lots of times that the government might think you’re speaking and you aren’t, and it does something to you, and you don’t have a case.

It’s actually said that about public employees and their speech. Let’s assume for a second that a public employee or your boss thinks that you said something bad about the mayor and you actually didn’t.

The fact that the government thought you engaged in Constitutionally protected speech doesn’t give you a free speech claim. Now, you might think your Republican employer is an idiot, you might think that it violated your collective bargaining agreement if it’s a unionized workforce, you might have a ton of other protections, but the Constitution protects your right to speak, and if you don’t speak, well, it hasn’t—the government hasn’t violated your rights.

Lithwick: And this is important because I think this really becomes the heart of the case; right? It becomes almost a smack down at oral argument between you, and in great measure Elena Kagan, but some of the other Justices on the Left Wing of the Court who keep insisting that the Constitutional issue here is the government doesn’t get to fire or demote people because of things they say, even if the government is wrong.

And you’re saying, no, that’s not the nature of the First Amendment right here. The First Amendment right here is, it’s not about restraining government, it’s about your right to speech. And if you didn’t speak or associate or act in any way other than tote around a sign for your bedridden mom, then the Constitution is not at play here.

I mean, that is a pretty existential debate you’re having there; right?

Goldstein: I know. This tiny little case about the reassignment of this guy that comes from this fluke—that he actually testified that he didn’t care who won the mayoral race—does raise this humungous issue in American Constitutional law.

And Justice Kagan wrote about it when she was a law professor, and obviously cares a lot about it, yes. So, you know, one way of thinking about this oral argument is that Justice Kagan and I are in a tug of war for the heart and soul of Justice Kennedy, who seems to be in the argument the pivotal vote, she has the advantages of being a Supreme Court Justice and being able to kind of step into the argument and make her points, and I thought she was very, very engaged in the argument.

Lithwick: I agree. And I want to play you a little bit of Justice Kennedy because I think that it’s quite clear that of all the Justices, he was the one who seemed to take both sides. During both sides of oral argument at one point I think he looked awfully skeptical of Paterson’s argument, then he looked awfully skeptical about Heffernan’s argument.

So, let’s play a little bit of Anthony Kennedy when I think he’s starting to bear down on you, again, rooted in this principal that aren’t we meant to be restraining the states? Let’s have a listen.

Justice Kennedy: You want this Court to hold that the Government of the United States has a right to ascribe to a citizen views that he or she does not hold?

Goldstein: Justice Kennedy, I think that that is not a First Amendment violation. I don’t think the other side thinks it’s a First Amendment violation.

Lithwick: So, Tom, help me explain to Justice Kennedy why this is not about the state willy-nilly affixing opinions on to people they don’t actually hold and then firing or demoting them as a result of those mistakes.

Goldstein: Sure. Well, it turns out that there are lots of times that an individual police officer might think something about you; you know, you’re going to walk into Democratic National Headquarters, you’re actually going in there to use the bathroom, and he thinks, oh, you’re a Democrat, and I’m going to stop you. Well, it doesn’t create a free speech or association claim.

We explained to Justice Kennedy, you know, we get it. If the Government has a broad policy that assigns people into groups in a way that it shouldn’t, okay, but we’re talking about a single cop here. And the chief of police makes all kinds of decisions, and the Supreme Court has said, look, this really isn’t the Constitution’s job.

Local governments have to be able to run their public work force. If the Constitution is always stepping in, it’s going to be just a wet mess. So, you know, the—but Justice Kennedy was very passionate about this. He’s a visionary as a Justice, he likes to think about things from the big picture—the message that the Court and the Constitution are sending out to the country— and I thought that at oral argument his intuition, his feel for it was that there does seem to be something wrong with the idea that the government could ascribe these political views to someone and act on them.

And we tried to, you know, make our points about how think about all the times the government does that, think about it in the context of gerrymandering, when we assign people to districts, think about campaign finance law. It turns out there are a ton of times that the government looks at people and says, ah-hah, I think you have this political view.

Lithwick: Tom Goldstein is the founding editor of SCOTUSblog, the must go-to site if you care about the Supreme Court. He’s a frequent oral advocate at the High Court, and in this case, he represented the City of Paterson, New Jersey.

Tom, it is a pleasure to speak to you.

Goldstein: You’re always so good to have me on. Thanks.

Lithwick: And that is just about going to do it for today’s episode of Amicus. But before we leave you, we want to flag just one other final development from the Supreme Court last week.

You probably know this already, but the court agreed to review a big, big challenge from Texas and about half the other states to President Barack Obama’s immigration reforms. Now because this case will also be heard this very term, it is just not an exaggeration to suggest that the 2015 term encompassing abortion, and affirmative action, and union funding, and contraception coverage, and now immigration reform is poised to be, well, the mother of all terms in our lifetimes.

Maybe not, but stay tuned. As always, we would love to hear what you thought of this week’s show. Our email address is amicus@slate.com. We really love your letters, and we do try to respond. We also love reading the reviews of our podcast that you’ve left on our iTunes page.

These reviews are a great way to help other people find out about the podcast. To leave one of your very own, just search Amicus on the iTunes store and click the ratings and reviews tab, and thank you. If you have missed any of our past shows, you can always find them at slate.com/amicus.

We also post transcripts of shows there, but you do have to be a Slate Plus member to access them. And please wait for a few days for the transcripts to post. It takes a little bit of time. Thank you as always to the Virginia Foundation for the Humanities where our show is taped.

Our producer is Tony Field, and Andy Bowers is our executive producer. Amicus is part of the Panoply Network. Check out our entire roster of podcasts at iTunes.com/panoply. I’m Dahlia Lithwick. We’ll be back with you soon for another edition of Amicus.